Sen. Jeffords's closed-door impeachment statement

Released into Congressional Record, February 12, 1999

Sen. Jim Jeffords (R-Vermont): On January 7, 1999, the House of Representatives presented the Senate with two articles of impeachment against President William Jefferson Clinton. The articles charged the President with lying under oath before a federal grand jury and with obstruction of justice. In the days following the House's presentation of the articles, many have criticized the Senate for continuing on where the House left off. They argue that if there are not enough votes in the Senate to remove the President, then the Senate should not have bothered proceeding with the trial. While this may seem like a reasonable way of disposing of an unpopular process, the Senate has a Constitutional duty to hold an impeachment trial. Although the Constitution provides little guidance, one thing was clear: In order to fulfill this duty, we had to come together as a body and proceed in a manner that was judicious, deliberative and fair. That meant that before the Senate could make any decision on the articles of impeachment, each side had to be given the opportunity to present its case.

Now that we have heard from the House Managers, the President's counsel and viewed the deposition testimony of three key witnesses, it is the appropriate time to render judgment on the articles of impeachment. I must state at the outset that this has been one of the most difficult experiences that I have endured in my 23 years in Congress.

A. A Loss of Respect.

This process has been distressing on a personal level because I came into it with a great deal of respect and admiration for President Clinton. Over the past six years, we have enjoyed a good working relationship. While we do not share the same party and we often approach issues from different points of view, the President and I have worked together on a number of important projects. Given my esteem for the President, I have been saddened and gravely disappointed by much of what I have learned over the last few weeks. Whatever the final outcome, I will leave this trial with the knowledge that the President has indeed committed shameful acts, misled the American people and brought disrepute on the office of Presidency. By his own actions, he has ensured himself a place in history alongside President Andrew Johnson.

B. Setting An Important Precedent.

This process has been trying on a professional level because I recognize the enormous historical significance of my decisions. This trial will establish precedents to examine and judge the conduct of all future Presidents. While our founding fathers clearly intended impeachment for only the greatest offenses, confronted with a series of tawdry acts, the facts and circumstances do not neatly fit into the definition of 'other high crimes and misdemeanors.' I am gravely concerned that a vote to convict the President on these articles may establish a low threshold that would make every President subject to removal for the slightest indiscretion or imperil every President who faces a Congress controlled by the opposing party. Yet, at the same time, I am concerned that a vote of acquittal could be mistaken by future generations to mean that perjury and obstruction of justice are not impeachable offenses.

II. HAVE THE HOUSE MANAGERS PROVEN THE ARTICLES OF IMPEACHMENT?

A. The Standard of Proof: Clear and Convincing Evidence

The Constitution provides very little guidance to the Senate for its trying of the impeachment of the President. There is absolutely no reference at all to the standard of proof that senators shall use when evaluating the Articles of Impeachment. I believe the fact that the Framers gave this body the duty to try an impeachment, but no guidance as to what standard of proof to use in the trial, gives each senator the discretion to select the standard he or she deems appropriate.

In making my decision, I have focused on the nature of the proceeding; The impeachment trial is a unique process, it is neither criminal nor civil. I also focused on the purpose of the proceeding; The Senate holds an impeachment trial to determine whether there is proof that the President's misconduct rises to the level which demonstrates that he or she is no longer fit to hold office.

Given the nature and purpose of an impeachment trial, I have decided that the 'preponderance of the evidence' standard would not be appropriate as being too low a standard. On the other hand, I believe that 'proof beyond a reasonable doubt' would raise too high a standard. The question we must ask ourselves is: Do the President's actions demonstrate that he is unfit to serve, thus warranting his removal in order to protect the public? Since we are concerned with the public's protection I would suggest that the clear and convincing standard, which lies somewhere in between, would be more appropriate to make the very fateful decision of removing the President from office.

Accordingly, I have used the clear and convincing evidence standard to judge the impeachment charges against President Clinton. I understand that this standard is little used, however, I feel that in impeachment trials it is most appropriate to use a standard that is somewhere in between the extremes.

B. Article I: Perjury Before the Grand Jury.

Article I alleges that the President provided perjurious false and misleading testimony before the federal grand jury. The House Managers applied the federal perjury statute found at 18 U.S.C. 1623 to the President's testimony. The elements of perjury are met when: (1) while under oath (2) one knowingly (3) makes a false statement as to (4) material facts. While I agree that some of the President's statements before the federal grand jury were false and misleading, I have concluded that some of the allegations simply do not rise to the level of perjury and that the House Managers have not proven the remaining perjury charges by clear and convincing evidence.

The first allegation is that the President committed perjury before the grand jury when he testified about the nature of his relationship with Monica Lewinsky. In his testimony before the grand jury, the President admitted that his relationship with Ms. Lewinsky was ongoing and that it involved inappropriate intimate contact. Based on the House Managers' presentation, there is no doubt in my mind that the President's prepared statement to the grand jury was inaccurate in part. While I disagree with the House Managers' conclusion that the President's use of the terms 'on certain occasions' and 'occasional' were intentionally misleading, I agree with the House Managers that the President lied about when and how his relationship with Ms. Lewinsky began. However, given that the President admitted to the key issue before the grand jury, I am not persuaded that lies about these immaterial details justify a charge of perjury. I also reject the related allegations pertaining to the President's testimony regarding the definition of sexual relations used in the Jones case.

The second allegation of this Article is that the President committed perjury in his grand jury testimony by repeating the perjurious answers he had given in his civil deposition. The House Managers have certainly proven that the President lied about a number of issues in his civil deposition. However, Article I concerns the President's grand jury testimony, not his deposition testimony and the House Managers seem to rely upon the President's reaffirmation of his deposition testimony as proof that he committed perjury. Since I do not find that the President reaffirmed his deposition testimony before the grand jury, I reject this allegation of perjury.

The third allegation is essentially that the President committed perjury when he testified before the grand jury that he was not paying attention to Mr. Bennett's misstatement that the Lewinsky affidavit meant that 'there was no sex of any kind in any manner, shape or form.' Although the video tape of the President's civil deposition does show the President staring in Mr. Bennett's direction, we cannot know what the President was actually thinking at that time. We have all had moments where we appear to be paying attention to a speaker, when we are actually lost in our own thoughts. Because the House Managers could not possibly prove whether or not the President was actually paying attention to the exchange, they have not met the burden of proving that the President's testimony was false.

The final allegation in Article I is that the President testified falsely about his attempts to obstruct justice in the Jones case. I reject this perjury allegation outright because I believe it was improper for the House Managers to include a restatement of the obstruction of justice allegations within Article I. I have considered the obstruction of justice allegations in Article II.

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C. Article II: Obstruction of Justice

The second article of impeachment charges the President with obstruction of justice. Article II charges that the President prevented, obstructed and impeded the administration of justice, both personally and through his subordinates and agents, in a Federal civil rights action. To prove a case of obstruction of justice under the Federal statute found at 18 U.S.C. 1503, the House Managers must prove that the President acted with intent and that he 'endeavored to influence, obstruct or impede the due administration of justice.' After considering these allegations, I have concluded that the House Managers failed to prove all but one of the obstruction of justice charges. My basis for this conclusion is the following:

The first allegation in Article II is that the President obstructed justice by having his friend Vernon Jordan assist Ms. Lewinsky in her New York job search in exchange for her silence in the Jones case. To prove this allegation, the House Managers presented compelling circumstantial evidence that Mr. Jordan assisted Ms. Lewinsky with both her job search and with her affidavit. The House Managers also pointed to the fact that Ms. Lewinsky received her job offer just two days after she signed a false affidavit. However, there are also circumstantial facts that belie the 'quid pro quo' claim. First, there is evidence that the President enlisted Mr. Jordan's help well before Ms. Lewinsky's name appeared on the Jones witness list. Second, Mr. Jordan testified in his Senate deposition that he had 'stepped up' the job search before he learned that Ms. Lewinsky was involved. On a final note, a conspiracy takes two willing actors. I would have a hard time convicting the President of this charge when both Mr. Jordan and Ms. Lewinsky have denied that there was any connection between the job search and the false affidavit.

Another allegation is that the President obstructed justice by encouraging Ms. Lewinsky to file a false affidavit in the Jones case. The House Managers have shown that when the President informed Ms. Lewinsky that her name had appeared on the Jones witness list, he suggested that she might file an affidavit to avoid being deposed. To find that the President obstructed justice, however, I must infer from the evidence that the President was encouraging Ms. Lewinsky to file a false affidavit. I cannot make this leap when Ms. Lewinsky herself testified that President Clinton made no connection between their false cover stories and the contents of the affidavit. Indeed, Ms. Lewinsky testified repeatedly that the President never discussed the contents of the affidavit with her and that, at the time of their conversation, she did not think that the affidavit necessarily had to be false.

Article II also alleges that the President obstructed justice by encouraging Ms. Lewinsky to hide his gifts. The thrust of the House Managers claim is that the President instructed Ms. Currie to pick up the gifts from Monica Lewinsky on December 28, 1997, so that Ms. Lewinsky would not have to turn the gifts over to Paula Jones' attorneys. I would agree that the

circumstances of the President's secretary, Ms. Currie picking up the gifts several hours after Ms. Lewinsky suggested to the President that Ms. Currie might hold onto them for safekeeping are certainly suspect. If the House Managers could prove that Ms. Currie initiated the gift pickup there would be clear and convincing evidence that the President was in fact encouraging Ms. Lewinsky to hide the gifts. Because there is conflicting evidence on this critical issue, the House Managers did not meet their burden.

In addition, Article II alleges that the President obstructed justice by making false and misleading statement to his aides about Ms. Lewinsky. Given that the President had an ongoing relationship with Ms. Lewinsky, it was spurious, mean spirited, defamatory and morally wrong for the President to refer to Ms. Lewinsky as a stalker or to in any way impugn her reputation. The House Managers and all of us have every reason to be incensed by the President's actions. That being said, it is clear that the President made these remarks in his continuing effort to conceal the true nature of his relationship with Ms. Lewinsky. There is no evidence that the President knew that these aides would be called to testify. Therefore, I believe that this allegation has no merit.

While I found the other charges alleged in Article II to be either legally or factually deficient, there is one allegation of obstruction of justice which I believe that the House Managers have proven by clear and convincing evidence; the President's post-deposition statements to Bettie Currie. Ms. Currie testified that on two occasions in the days following the President's deposition in the Jones case, the President called her into his office and made a series of remarks to her 'You were always there when she was there, right? We were never alone. You could see and hear everything. Monica came on to me and I never touched her, right? She wanted to have sex with me and I couldn't do that.'

I simply do not believe the President's explanation that he was questioning Ms. Currie in an 'effort get as much information as quickly as I could' or that he was 'trying to ascertain what the facts were' or 'what Ms. Currie's perception was.' I am also not persuaded by the fact that Ms. Currie testified that she did not feel pressured to agree with the President. Rather, I agree with the House Managers that if the President was actually seeking information he would not have been asking rhetorical questions. I also believe that the President's explanation would be more plausible if his statements to Ms. Currie were not false.

The fact is that the President gave false testimony in the Jones deposition, that during his deposition he repeatedly referred to Ms. Currie as someone who could back up his testimony and that immediately following the deposition he summoned Ms. Currie into work on a Sunday and cleverly spoon-fed his cover stories to her. Despite the President's counsel's protestation, there was still a possibility that Ms. Currie could be called to testify in the Jones case. Accordingly, I believe that when the President called Ms. Currie to his office and repeatedly recounted these false statements he 'endeavored to influence, obstruct or impede the due administration of justice' in violation of the federal obstruction statute.

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III. HAS PRESIDENT CLINTON COMMITTED A HIGH CRIME WARRANTING HIS REMOVAL FROM OFFICE?

A. To Decide Whether the President's Actions are a High Crime, We Must Look at the Underlying Circumstances.

The House Managers has left us with the impression that once we conclude that the President has committed either perjury or obstruction of justice, we have a Constitutional duty to vote to remove the President from office. They maintain that perjury and obstruction of justice must be considered high crimes per se because they carry the same penalties as bribery. I reject this premise. In fact, the severity of a bribery sentence is dependent on subject matter and the amount of the bribe. Similarly, a conclusion that the President committed obstruction of justice should not automatically warrant his removal. It is incumbent upon each of us to examine the underlying facts and circumstances to determine whether or not the President has committed a high crime.

B. Background: How Did We Get Here Anyway?

Now, having found that the President is guilty of obstructing justice in the Paula Jones case, I had to determine whether the violation is a 'high crime' warranting removal from office. This led me to think about what justice was actually being obstructed and to consider the underlying circumstances that brought us here today.

In the narrow legal sense, this entire impeachment trial rests on the Independent Counsel statute and the Paula Jones case.

As many of my colleagues remember, Congress enacted the Independent Counsel statute in the wake of the Watergate scandal, after President Nixon ordered the dismissal of special Watergate prosecutor Archibald Cox over his refusal to drop a subpoena for Nixon's incriminating White House tapes. Congress designed the Independent Counsel statute to insulate and protect investigations of alleged criminal conduct by the President and other high-level federal officials. Unfortunately, the statute has not worked as Congress envisioned it would. This well intended statute has resulted in a proliferation of interminable, expensive investigations against public officials. It has cost our taxpayers more than $130 million and considering all the time, effort and expense, there have been very few successful prosecutions resulting from the statute.

One such investigation under the statute originated in August 1994, when Judge Kenneth Starr was appointed as an Independent Counsel to investigate alleged wrongful acts in the so-called Whitewater land deal. During the course of the next four years, the Office of Independent Counsel ('OIC') expanded its investigation of President Clinton a number of times. At the same time, the President was defending a civil rights action by Paula Jones, a former Arkansas state employee who alleged that President Clinton sexually harassed her during the time he served as Governor. Last January, the OIC was able to expand its investigation and redirect its D.C. based Whitewater Grand Jury panel to investigate the President's concealment of his extramarital affair with White House employee Monica Lewinsky.

We must not forget that the reason that the President's relationship with Ms. Lewinsky was even an issue in the Jones suit was because Paula Jones was trying to show that the President's treatment of Ms. Jones was part of a pattern and practice of sexual harassment. Judge Wright initially ruled that Paula Jones was entitled to information on the so-called Jane Does, because that evidence might help establish the President's pattern of sexually harassing conduct. However, Judge Wright ultimately ruled that evidence about the President's harassment of other women would not change her decision to dismiss the case because Paula Jones failed to establish that she, herself was harassed. I quote from the Judge's April 1, 1998 decision:

One final matter concerns alleged suppression of pattern and practice evidence. Whatever relevance such evidence may have to prove other elements of plaintiff's case, it does not have anything to do with the issues presented by the President's motion for summary judgment, i.e., whether plaintiff herself was the victim of alleged quid pro quo or hostile work environment sexual harassment. . . . Whether other woman may have been subjected to workplace harassment, and whether such evidence has allegedly been suppressed, does not change the fact that plaintiff has failed to demonstrate that she has a case worthy of submitting to a jury. [emphasis added]

Why is this ruling so important in my decision? Well, we are essentially here today because the Whitewater investigation was expanded to determine whether President Clinton's efforts to conceal his consensual relationship with Ms. Lewinsky obstructed Paula Jones' right to justice. The plain fact is that the Jones case was thrown out because Judge Wright ruled that Paula Jones had no case and that even if the President had revealed the true nature of his consensual relationship with Ms. Lewinsky, it would not have changed the outcome of Paula Jones case. While President's relationship with Ms. Lewinsky was morally wrong, there is absolutely no evidence that the President was sexually harassing Ms. Lewinsky.

Although I have concluded that the President obstructed justice by trying to influence the testimony of Bettie Currie, the fact is that the President's actions did not actually hinder Paula Jones. Indeed, in the midst of the OIC investigation, Paula Jones appealed Judge Wright's ruling and the President agreed to pay her $850,000 in an out-of-court settlement. Some might even argue that as a perverse result of the President's obstruction of justice, Paula Jones ended up with greater monetary relief than she would have otherwise received. Therefore, while the articles of impeachment came about as a direct result of President Clinton's actions in the Jones case, it is clear that in the end, the President's actions did not negatively effect Paula Jones' justice. In other words, there was no justice to obstruct in the Jones case.

C. Is the President Fit to Serve?

Most of us now believe that the President lied about his relationship with Ms. Lewinsky when he testified under oath and that he also lied about the nature of his relationship to his staff, his family and the American people. I have concluded that the President not only lied about the affair but that he took at least one illegal action in an attempt conceal the truth from Paula Jones. However, I believe that President Clinton took these steps to avoid deep personal embarrassment, not to seize, maintain or subvert the power of the state.

Let us not forget that the ultimate question we must each answer is whether on these facts arising out of these circumstances this President poses such a danger to the state that we can no longer permit him to remain in office. The ultimate issue here is a determination of whether the President is fit to serve.

Consider our constitutional guidance: The President of the United States 'shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.' The Framers intentionally set this standard at an extremely high level to ensure that only the most serious offenses would justify overturning a popular election. The concept of 'maladministration' was considered and rejected.

I believe that whether the President's misconduct occurred in the private sphere or in his public or official capacity is also an important distinction to make when deciding his fitness to serve. Clearly, there are those private acts which in no way reflect on a president's fitness for office. On the other hand, there are public or official acts which I think no reasonable person would doubt reflect poorly on a president's fitness for office and would warrant impeachment and removal. I think we can all see the difference in gravity between the offenses of which President Clinton stands accused and a hypothetical accusation that he took a bribe. While the former reflects poorly on his character and discretion, the latter reflects on his fitness to serve and describes a classic case of abuse of office.

For the President to do what he did was reprehensible and morally wrong. I believe that the President lied to avoid embarrassment. However, the Framers did not envision such behavior as being encompassed by the phrase 'other high crimes and misdemeanors.'

The bottom line is that old maxim that bad facts lead to bad law. Such a low threshold for removal of a president from office would be dangerous. After careful consideration, I have concluded that President Clinton has not committed an offense that indicates the President is not fit to serve. Therefore, I will not vote to convict President Clinton.

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D. Time to Move On.

I do not want the President to come away from this trial thinking that he is forgiven, or that what he has done is not serious, because I think it was most serious. I do not want the people of this nation to think that a vote of acquittal means that the President's conduct is acceptable because it is not acceptable. Lying and obstruction are wrong. I also hope that my vote does not lend any credence to the notion that sexual harassment is not that important, because it is important. A determination to let the President serve out his term should not be taken as an exoneration of his actions. At the same time, I think it is extremely important that we leave this chapter behind us and move on to the nations' business.